NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2472-15T3
MICHAEL DANIELE,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, THE
DIVISION OF STATE POLICE
OF THE STATE OF NEW JERSEY,
DIVISION OF LAW AND PUBLIC
SAFETY,
Defendants-Respondents.
____________________________________
Submitted May 16, 2017 – Decided October 17, 2017
Before Judges Espinosa, Suter, and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-0807-12.
George T. Daggett, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Robert
P. Preuss, Deputy Attorney General, on the
brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Plaintiff Michael Daniele appeals the March 28, 2016 order,
denying reconsideration of the dismissal, with prejudice, of his
complaint filed under the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14. We reverse and remand. The
complaint expressly referenced plaintiff's previously successful
CEPA action against the same defendant and alleged adverse
employment action causally related to the prior complaint. Through
reference to the earlier complaint, the new complaint stated a
claim under CEPA and should not have been dismissed under Rule
4:6-2(e).
In 2007, plaintiff filed a CEPA complaint (the 2007 complaint)
against the State Police and the State of New Jersey (defendants).
Plaintiff alleged in that complaint that he alerted his superior
officers about dog handlers in the K-9 unit, to which he was
assigned, who were being trained by unqualified personnel in
violation of certain required guidelines. He was transferred
thereafter to the recruiting unit for which he had no experience.
The 2007 complaint alleged the transfer and his subsequent lack
of promotion violated CEPA. A jury returned a favorable verdict
on the 2007 complaint, awarding compensatory damages.
In April 2012, plaintiff filed another CEPA complaint (the
2012 complaint) against the same defendants, seeking damages.
Plaintiff alleged he was a member of the State Police and that on
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October 12, 2010, he obtained a jury verdict in his favor against
the State Police based on a violation of CEPA. The 2012 complaint
alleged that because the 2007 complaint was successful, he was not
being "appropriately promoted" and was being punished for bringing
the 2007 complaint. He alleged defendants' current action in not
promoting him was "in itself a CEPA violation."
The case had multiple trial listings and defendants' motion
for summary judgment was denied. On September 14, 2015, the case
was assigned out for trial. The trial court raised whether the
2012 complaint adequately pled a cause of action under CEPA. The
court questioned whether the 2012 complaint's reference to the
2007 complaint, without detailing specific whistle-blowing
activity, sufficed to state a claim under CEPA. After discussing
the issues, the court adjourned the case until the next day to
permit the parties to research whether legal authority supported
plaintiff's contention that reference to the 2007 complaint and
judgment alone qualified as whistleblowing for which retaliation
was impermissible under CEPA. The parties sent the court
additional submissions.
The next day, following oral argument, the trial court
dismissed plaintiff's 2012 complaint with prejudice under Rule
4:6-2(e) for failure to state a claim upon which relief can be
granted. The court found no supporting authority for plaintiff's
3 A-2472-15T3
claim. It summarized CEPA as "prohibiting an employer from doing
a retaliatory act . . . if the employee discloses or threatens to
disclose to a supervisor . . . policies or practices . . . ,"
"provides information to or testifies before a public body," or
"objects or refuses to participate in activities . . . which the
employee reasonably believes are in violation of the law." The
court observed that CEPA "talks about whistleblowing." "The Act
does not talk about the filing of a complaint . . . ." That would
be "protected speech under the Constitution." However, the court
stated "we're simply talking about a judgment and the aftermath
as perceived by the plaintiff." The court found no way to amend
the complaint, holding there was no "construct that the complaint
is sufficient to meet the standard as necessary to give rise and
to give a basis for a CEPA action in this court."
Plaintiff's motion for reconsideration was denied in March
2016. The court concluded the 2012 complaint "simply [did not]
pass muster in terms of stating a claim upon which relief could
be granted."
On appeal, plaintiff contends the trial court erred by
dismissing the 2012 complaint with prejudice because it stated a
valid claim under CEPA and under the Petition Clause of the First
Amendment, U.S. Const. amend. I (Petition Clause). He contends
that dismissing the 2012 complaint on the trial date constituted
4 A-2472-15T3
a due process violation. We agree that the 2012 complaint
adequately stated a claim for relief under CEPA and should not
have been dismissed under Rule 4:6-2(e). We reverse and remand.
We review de novo the challenged order that dismissed
plaintiff's complaint for failure to state a claim for which relief
can be granted, applying the same legal standard as the trial
court. NL Industries, Inc. v. State, 442 N.J. Super. 403, 405
(App. Div. 2015); see also Rezem Family Assocs., LP v. Borough of
Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,
208 N.J. 368 (2011). A motion for failure to state a claim must
be denied if, giving plaintiff the benefit of all his allegations
and all favorable inferences, a cause of action has been alleged
in the complaint. Printing Mart-Morristown v. Sharp Elec. Corp.,
116 N.J. 739, 746 (1989). "Ordinarily a dismissal for failure to
state a claim is without prejudice." Pressler & Verniero, Current
N.J. Court Rules, comment 4.1.1 on R. 4:6-2 (2017).
CEPA is remedial legislation that is to be interpreted
liberally. Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003). To
establish a prima facie case under CEPA, a plaintiff must prove
each of the following:
(1) he or she reasonably believed that his or
her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy;
5 A-2472-15T3
(2) he or she performed a "whistle-blowing"
activity described in N.J.S.A. 34:19-3(c);
(3) an adverse employment action was taken
against him or her; and
(4) a causal connection exists between the
whistle-blowing activity and the adverse
employment action.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380
(2015) (citing Dzwonar, supra, 177 N.J. at
462).]
"[W]histleblowing activity is protected from employer
retaliation." Id. at 378. CEPA prohibits employers from taking
"any retaliatory action" against an employee who:
a. Discloses, or threatens to disclose to a
supervisor or to a public body an activity,
policy or practice of the employer, or another
employer, with whom there is a business
relationship, that the employee reasonably
believes:
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law . . . ;
or
(2) is fraudulent or criminal . . . ;
b. Provides information to, or testifies
before, any public body conducting an
investigation, hearing or inquiry into any
violation of law, or a rule or regulation
promulgated pursuant to law by the employer
. . . ; or
c. Objects to, or refuses to participate in
any activity, policy or practice which the
employee reasonably believes:
6 A-2472-15T3
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law . . . ;
(2) is fraudulent or criminal . . . ; or
(3) is incompatible with a clear mandate of
public policy concerning the public health,
safety or welfare or protection of the
environment.
[N.J.S.A. 34:19-3.]
Our decision here is narrowly focused. Plaintiff
successfully litigated the 2007 CEPA complaint against the same
defendants. With respect to the required prima facie case, he
proved that his employer's conduct violated "a law, rule or
regulation" and that he performed a whistleblowing activity. We
see no prohibition under CEPA why that earlier established claim
could not satisfy a portion of the prima facie requirements under
CEPA for the 2012 complaint. Plaintiff contended in the 2012
complaint that further retaliation against him was due to the
earlier 2007 complaint. Reliance on the 2007 complaint was simply
a shorthand reference, in our view, to the allegations in the 2007
complaint. If the 2012 complaint did not have adequate detail,
the court could have allowed plaintiff to amend the pleadings
rather than dismiss it with prejudice.
We find support for this conclusion in the liberal
construction that we are to give to CEPA. See Lippman, supra, 222
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N.J. at 378 (finding that because CEPA "is considered remedial
legislation [it is] entitled to liberal construction"). The 2012
complaint involves the same parties. The CEPA claim is based on
the same established whistleblowing activity. Because plaintiff
established through a jury verdict that he was a whistleblower
under CEPA and now alleged further retaliation based on the same
whistleblowing activity, we see no reason to dismiss the 2012
complaint under N.J.S.A. 4:6-2(e) for failure to state a claim.
That said, we make no prediction about the overall success
of plaintiff's claim. We simply hold on these facts, where the
prior CEPA claim was established by a jury verdict, that reference
in the 2012 complaint to causally related retaliation based on the
2007 complaint, was adequate to survive dismissal under Rule 4:6-
2(e).
In light of our decision to remand the complaint, we have no
need to address whether the case presented a viable Petition Clause
claim. In addition, although we have serious reservations about
the procedure utilized by the trial court in dismissing the action
with prejudice on the eve of trial, see Klier v. Sordoni Skanska
Const. Co., 337 N.J. Super. 76, 83 (App. Div. 2001), we have no
need to address the constitutional infirmity in light of our
decision to reverse and remand on other grounds. See Randolph
Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006)
8 A-2472-15T3
(stating that "[c]ourts should not reach a constitutional question
unless its resolution is imperative to the disposition of the
litigation.").
Reversed and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
9 A-2472-15T3
MICHAEL DANIELE VS. STATE OF NEW JERSEY (L-0807-12, MERCER COUNTY AND STATEWIDE) (L-10204-15, BERGEN COUNTY AND STATEWIDE)
Combined Opinion